Vagrancy and Disorderly Conduct
VAGRANCY AND DISORDERLY CONDUCT
Vagrancy and disorderly conduct are examples of a category of legal prohibitions commonly referred to as public order offenses. Such offenses share a number of general characteristics. They usually prohibit relatively trivial types of public misconduct such as, for example, aggressive panhandling, public drinking, or loitering in the vicinity of an automated teller machine. In the main, they provide for comparatively low-level punishments. In addition, police commonly exercise a considerable degree of discretion in the enforcement of public order laws. This is partly because such laws are often not formally enforced even when they are clearly violated. Instead, these laws are frequently invoked by police informally, to require offenders to put an end to behaviors seen to threaten the public peace. Public order offenses thus provide police with the legal authority to discharge their "order maintenance" or "peacekeeping" responsibilities, meaning those responsibilities associated with helping to maintain order in public places, as opposed to enforcing the criminal law.
It is impossible to provide a precise definition of either vagrancy or disorderly conduct. These offenses have been described differently at different times and the laws treating them have varied considerably from state to state. Historically, however, state legislatures and municipal authorities in the United States tended to define vagrancy and disorderly conduct very broadly so that these offenses operated, in effect, as catch-all provisions that subjected a wide variety of public behaviors and conditions to police authority. Vagrancy laws were often drafted not to prohibit particular acts of public misconduct, but instead to criminalize statuses—such as being a rogue, a known criminal, a vagabond, a loiterer, a habitual loafer, or a common thief. Thirty categories of vagrancy were identified in 1962 as then existing in laws to be found throughout the United States (Note). Similarly, disorderly conduct at around this time was in some places defined simply as being a vagrant. Even when disorderly conduct laws prohibited behaviors, rather than statuses, moreover, these behaviors were often defined very generally to include any conduct that tended to disturb the safety, health, or morals of others.
During the period from the 1950s into the 1970s, public order laws of this type were increasingly seen to pose significant problems. They imposed criminal sanctions on conditions or behaviors—like poverty or alcohol abuse—that were viewed by many as social or medical problems not properly within the ambit of criminal law. In addition, the breadth and vagueness of such laws conferred considerable discretion on police as to how they should be enforced—discretion that was frequently exercised in ways that discriminated against racial or ethnic minorities, as well as the poor. Because the penalties for public order offenses were often relatively trivial, moreover, the real punishment for such infractions was often simply the inconvenience and embarrassment of an arrest—a punishment that could be meted out solely at the hands of police. The criminal courts charged with handling prosecutions involving these low-level offenses were also poorly run and often failed to afford defendants even the basic essentials of a fair adjudication. Philadelphia magistrates' courts in the early 1950s, for example, routinely handled fifty or more cases in fifteen minutes or less. Mostly uncounseled defendants were rarely even informed of the charges, nor was there even a pretense of proving these charges by competent evidence.
The concerns of this period produced calls for legislative reform and some movement in this direction. Moreover, a rise in crime in the 1960s coupled with other factors, including a growing emphasis among police on criminal investigation, led many police departments in the 1960s and 1970s to de-emphasize order maintenance and to focus resources on the enforcement of laws against serious crime. Perhaps the most significant change in the area of public order law and its administration during this period, however, came as a result of federal constitutional decisions. Supreme Court cases extended the right to counsel and jury trial in the prosecution of many petty offenses. The Court rejected status as a basis for the imposition of criminal sanctions. Most significantly, many public order laws were invalidated as unconstitutionally vague or overboard.
This entry briefly describes the history of the broad "vagrancy-style" public order offenses invalidated during the 1960s and 1970s. It also discusses the Supreme Court cases that dramatically changed public order law and its administration during this period. Finally, the entry recounts how a growing emphasis on community policing and the quality of life in public spaces in the 1980s and 1990s sparked renewed interest in order maintenance by police. It describes how state legislatures and municipalities in the 1990s attempted to enact constitutionally acceptable public order laws to address the concerns with this class of offenses while at the same time affording police legitimate authority to be used in the amelioration of problems of crime and disorder.
The roots of laws against vagrancy and disorderly conduct in the United States can be traced to England. The breakup of feudal estates in fourteenth-century England, combined with severe regional labor shortages caused by the Black Death, resulted in the enactment of the Statute of Labourers in England (23 Edw. 3, New Statute, c. 1 (1349) (repealed) and 25 Edw. 3, Stat. 1, c. 1 (1350) (repealed)). The Statute of Labourers attempted to control the wandering of former serfs by requiring able-bodied persons without means of support to work for fixed wages and to refrain from traveling about the country to find better wages or to avoid offers of work. Originally aimed at enforcing labor, the English vagrancy laws came to be seen as serving other interests in the sixteenth and seventeenth centuries. Various conditions in England during this period, including the destruction of the monasteries during the reign of Henry VIII and the enactment of the enclosure acts (see Ledwith v. Roberts, (1936) 3 All E.R. 570, 585, 594 (C.A.)), which converted agricultural land into pasture for sheep, gave rise to a mass of people who wandered the country without means of livelihood. The vagrancy laws at this time were seen to protect local residents from the perceived potential criminality of vagrants and to safeguard parishes and municipalities from the financial burden of caring for nonresidents.
These policies underlying the English vagrancy laws were transplanted to colonial America. Under the Articles of Confederation, "paupers" and "vagabonds" were excepted from the guarantee of free movement between the states (art. 4). At the time of the founding, state and local governments customarily criminalized various forms of vagrancy, including loitering in public places. During the nineteenth century, the Supreme Court observed that it is "as competent and as necessary for a State to provide precautionary measures against the moral pestilence of paupers, vagabonds, and possibly convicts, as it is to guard against the physical pestilence. . . ." (Mayor of City of New York v. Miln, 36 U.S. (11 Pet.) 102, 143 (1837)). Until the mid-1960s, most states had broad vagrancy, loitering, and disorderly conduct laws. Vagrancy-style laws were employed at various times and in varying ways throughout American history to control the migration of the unemployed. They were also used after the Civil War to keep former slaves in conditions of servitude. During the Jim Crow era, vagrancy laws criminalizing the status of being unemployed were sometimes invoked to pressure African Americans to enter into unfavorable labor contracts.
Public order laws were rarely challenged in the courts until the 1960s, when attorneys became more widely available to the indigent following the Supreme Court's decision in Gideon v. Wainwright, 372 U.S. 335 (1963), which held that felony defendants unable to afford an attorney must be provided with one at state expense. A Jacksonville, Florida, ordinance reviewed by the Supreme Court in Papachristou v. Jacksonville, 405 U.S. 156 (1972), was characteristic of the vagrancy laws to be found in many localities during the period leading into the mid-1960s:
Rogues and vagabonds, or dissolute persons who go about begging, common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children shall be deemed vagrants. . . . (156 n.1)
Typical disorderly conduct laws of the period often contained general provisions prohibiting acts likely "to unreasonably disturb or alarm the public" (Garner v. Louisiana, 368 U.S. 157, 165 (1961)), as well as provisions aimed at "breach[es] of the peace,. . .riotous or disorderly conduct, open obscenity, public drunkenness or any other conduct grossly indecent or dangerous to. . .citizens" (Barr v. City of Columbia, 378 U.S. 146, 148 n.2 (1964)).
Such laws were sometimes said to assist in crime prevention by authorizing police to intervene early in suspicious circumstances, before people had the opportunity to engage in serious criminal activity. Because these laws were vague in terminology and often did not predicate arrest on the commission of any specific act, however, they were also said to invite arbitrary and discriminatory enforcement. Critics charged that public order laws were sometimes used for purposes like breaking strikes or "rounding up" ostensible suspects (for whom there was no individualized suspicion) when a crime had been committed. Caleb Foote documented how these laws were employed by Philadelphia police in the 1950s to "clean up" city neighborhoods by summarily removing prostitutes, drunks, and other "undesirables" from public places (Foote). In addition, public order laws were sometimes improperly invoked by police during civil rights struggles in the South. Indeed, the immediate impetus for the Supreme Court's consideration of cases involving public order laws during the 1960s was often the use of such laws against participants in peaceful sit-ins and civil rights demonstrations.
A number of Supreme Court cases decided in the 1960s and 1970s have affected the scope and administration of public order laws. Argersinger v. Hamlin, 407 U.S. 25 (1972), for instance, held that absent a waiver, no person may be imprisoned for an offense, even if it is classified as a misdemeanor or petty offense, unless represented by counsel. The Court held in Baldwin v. New York, 399 U.S. 66 (1970), that the right to jury trial applies to any offense for which imprisonment for more than six months is authorized. Though these cases by no means resolved all problems of fairness in the administration of public order laws, they did dramatically transform and improve procedure in the lower criminal courts, where public order offenses are generally prosecuted.
In 1962, the Court decided a case that had far-reaching implications for the scope of vagrancy-style laws. In Robinson v. California, 370 U.S. 660 (1962), the Court invalidated a state law that made it a crime to be a narcotics addict, stating that it violated the Eighth Amendment's prohibition against cruel and unusual punishment. In a later case, a plurality of the Court interpreted Robinson to mean that the punishment of "mere status" is unconstitutional: "[C]riminal penalties may be inflicted only if the accused has committed some act . . . which society has an interest in preventing" (Powell v. Texas, 392 U.S. 514, 533 (1968)). Though Robinson did not arise under a vagrancy or disorderly conduct law, its holding cast serious doubt on the constitutional validity of any public order law that provided for punishment of one's status as a common drunkard, loiterer, or the like, without proof of the commission of some criminal act.
In cases like Gooding v. Wilson, 405 U.S. 518 (1972), the Court next drew into question those public order laws with potential application to protected First Amendment activity. In Gooding, the Court invoked its overbreadth doctrine to invalidate a statute providing for the punishment of anyone "who shall, without provocation, use to or of another, and in his presence . . . opprobrious words or abusive language, tending to cause a breach of the peace" (405 U.S. at 519). In its traditional and most common form, the overbreadth doctrine permits individuals in certain circumstances to challenge a law, even when their own conduct might validly be prohibited under it, when the law could potentially reach activity that falls within the protections afforded to freedom of speech. The theory underlying this doctrine is that "overbroad" laws—laws reaching conduct legitimately prohibited by legislatures, but also constitutionally protected activity—should not be permitted to stand, lest they chill conduct that is deserving of constitutional protection. This doctrine led to the invalidation of a number of broadly worded laws prohibiting breaches of the peace in the 1960s and 1970s.
The Court did not directly address the constitutional status of a vagrancy law until 1972. In Papachristou, the Court invalidated Jacksonville's vagrancy ordinance as "void for vagueness." The Court held that the law violated the Constitution's due process guarantee by failing to give ordinary persons fair notice that contemplated conduct was forbidden and by encouraging arbitrary and erratic arrests and convictions. Writing for a unanimous Court, Justice William O. Douglas placed particular stress on the argument that an "all-inclusive and generalized" list of crimes that included such things as wandering or strolling about from place to place without lawful purpose encouraged discriminatory law enforcement (405 U.S. 166). In the Court's words:
The implicit presumption in these generalized vagrancy standards—that crime is being nipped in the bud—is too extravagant to deserve extended treatment. Of course, vagrancy statutes are useful to the police. Of course, they are nets making easy the roundup of socalled undesirables. But the rule of law implies equality and justice in its application. Vagrancy laws of the Jacksonville type teach that the scales of justice are so tipped that even-handed administration of the law is not possible. (405 U.S. 171)
Though it was not a basis for the Court's holding, the Papachristou opinion also observed that the Florida ordinance's classifications, which originated in the early English poor laws, were archaic: "The Jacksonville ordinance makes criminal activities which by modern standards are normally innocent" (405 U.S. 163).
The void-for-vagueness doctrine invoked by the Court in Papachristou was the basis for many lower federal and state court decisions invalidating vagrancy and disorderly conduct laws, both immediately before and after the Court's decision in that case. After the ruling in Papachristou, many states repealed their vagrancy laws, often replacing such elements of vagrancy as being a common prostitute or a habitual drunkard with separate, conduct-based offenses dealing with prostitution, public intoxication, and the like. Disorderly conduct laws remained common, but in many places were substantially revised, often along the lines suggested in the American Law Institute's Model Penal Code. The revisions aimed to make disorderly conduct laws more precise and to hinge punishment on the commission of specific acts, rather than on statuses.
Papachristou and related cases were extremely important to the legal authority of police to maintain order in public places. Collectively, these cases established that police could no longer enforce public order laws so vague that they in effect empowered police to devise their own standards of public decorum. Public order laws were required not only to deal with prohibited acts, rather than statuses, but to do so in language of adequate definiteness—in language clear enough to constrain the opportunity for arbitrariness on the part of local law enforcement.
Significantly, however, Papachristou did not articulate how far courts should go in demanding specificity in public order laws. Within months of the Papachristou decision, the Court noted in Grayned v. City of Rockford, 408 U.S. 104, 108 (1972), that courts could not require mathematical certainty in the language of such laws and that the exercise of some degree of police judgment in the employment of public order laws is necessary. Defining limits on the circumstances in which courts would entertain wholesale challenges to laws regulating trivial forms of public misconduct, however, was not of pressing concern by the time Papachristou was decided. Police had already shifted their attention away from order maintenance to focus on serious crime. Patrol by automobile, rapid response to calls for service, and the retrospective investigation of serious offenses—none of which involves police in the routine employment of public order laws—had become the principal operating strategies of police departments. It was not until the 1980s and 1990s that changes in policing philosophy caused many police departments to afford order maintenance a higher priority. Accordingly, it was at this time that the Papachristou reforms came up for closer reexamination.
Community policing and public order law
The emergence of community policing in the 1980s produced renewed interest in order maintenance by police. Community policing is a policing philosophy that grew out of perceived inadequacies in earlier approaches to local law enforcement. Broadly, community policing holds that police can more effectively address crime and disorder when they develop working relationships with people in the communities they police. It draws upon the idea of community-police reciprocity "to redefine the overall purposes of policing, to alter the principal operating programs and technologies on which the police have relied, and to found the legitimacy and popularity of policing on new grounds" (Moore). Among other characteristics, police in a community policing regime focus more attention on crime prevention and the quality of life in local neighborhoods. They may place emphasis on foot patrols and community organizing. They are more open to community-nominated problems and priorities.
Hundreds of police departments across the country began experimenting with community policing in the 1980s and 1990s. This provoked new interest in order maintenance in part because police learned from consultation with community members that people were extremely concerned with "low-level" matters like chronic vandalism, loitering gang members, and unsafe parks. Perhaps the most important ingredient in the revival of interest in order maintenance, however, was a 1982 essay by James Q. Wilson and George Kelling entitled "Broken Windows."
"Broken Windows" argued that the narrow focus of many police departments on the investigation of serious crime had resulted in the atrophy of a vital police role in promoting the quality of life in local neighborhoods. The fear endemic in many big-city neighborhoods in the early 1980s, Wilson and Kelling argued, stemmed as much from fear of disorderly conditions as from a realistic appraisal of residents' likelihood of being victimized by serious crime. Residents' fear of disorder should nevertheless be addressed, they contended, because such fear weakens a neighborhood's informal social control mechanisms by causing fearful residents to retreat from public places and from intervention in the matters occurring there. This abandonment of public spaces, Wilson and Kelling argued, damages residents' quality of life and even renders neighborhoods more vulnerable to criminal invasion. Wilson and Kelling urged that patrol officers should be deployed on foot, at least in those neighborhoods where they might help strengthen informal social ties, that they should be significantly neighborhood-oriented, and, in particular, that patrol officers should attend to matters like abandoned property, accumulating litter, inebriates slumped on neighborhood sidewalks, and teenagers loitering or fighting in front of stores.
"Broken Windows" 's critique of dominant trends in American policing that had deemphasized the order maintenance function was extraordinarily influential. It helped to stimulate the community policing movement and to revive interest in many localities in addressing minor disorder. Beginning in the early 1990s, municipalities across the country began to enact ordinances or take other legal steps to ameliorate public order problems. Juvenile curfews, for instance, became the norm in major American cities (Ruefle and Reynolds). Anti-drug and prostitution loitering ordinances were enacted in many places, as were laws directed at aggressive panhandling, loitering in the vicinity of automatic teller machines, automobile cruising, and the like. These new laws were generally much more specific than the broad public order laws invalidated during the 1960s and 1970s. Significantly, they also received critical support in several places from African Americans who historically had been principal targets of repressive order maintenance policing but who now supported the measured use of public order laws by politically accountable police to address serious problems of crime and disorder (Kahan and Meares).
These developments raised the question of how courts would treat this new generation of public order laws. Several federal appellate courts rejected vagueness and other constitutional challenges to juvenile curfews in the 1990s, though in some places courts did invalidate such laws. Ordinances prohibiting automobile cruising and aggressive panhandling were generally upheld in the face of constitutional attack. Courts split, however, on the constitutionality of drug and prostitution loitering ordinances, with a number of judges viewing such laws as overly vague or overbroad.
The Supreme Court addressed the constitutionality of one of these new public order laws in Chicago v. Morales, 527 U.S. 41 (1999). The case involved a Chicago, Illinois, ordinance that authorized police to order any group of two or more people found loitering in public places to move along on pain of arrest, so long as at least one of the group was reasonably believed to be a member of a criminal street gang. The ordinance was enacted in 1992, during a period of extraordinary gang violence in Chicago. The Chicago City Council issued findings that were included in the text of the law to explain the reasons for its enactment. These findings asserted, among other things, that street gangs had "taken over" entire neighborhoods in Chicago by intimidating residents from using public places. The gang loitering law was directed at regaining control of these public areas.
Morales produced six different opinions. The lead opinion, by Justice John Paul Stevens, was joined in full by only two Justices and in part by three others. The Morales majority concluded, in an extremely narrow holding, that the Chicago ordinance's definition of loitering ("to remain in any one place with no apparent purpose") was unconstitutionally vague in that it failed to set sufficiently specific limitations on the enforcement discretion of Chicago police (527 U.S. at 60–65). A plurality composed of Justices Stevens, Ruth Bader Ginsburg, and David Souter went further to opine that the freedom to loiter for innocent purposes is an attribute of personal liberty protected by the Constitution's due process clause. These three Justices in effect concluded that loitering is a constitutionally protected activity and that there are thus limits on the ability of localities to regulate it.
On the whole, however, the Morales opinions suggested a willingness on the part of the Court to uphold many laws regulating the use of public spaces, including laws directed at activities like loitering. Three Justices dissented in Morales and concluded that Chicago's gang loitering law was plainly constitutional. Significantly, even the majority opinion concluded that loitering by gang members could be regulated. Indeed, this opinion asserted that an ordinance limited to loitering by gang members that had an apparently harmful purpose would satisfy the vagueness doctrine. In an opinion concurring in part and concurring in the judgment, Justice Sandra Day O'Connor, joined by Justice Stephen Breyer, suggested several additional ways in which Chicago might constitutionally prohibit gang members from loitering in public places so as to intimidate others from using them.
Morales thus offered municipalities room in which to continue to experiment with affording police new authority to address public order concerns. Indeed, in the wake of the Morales decision, the Chicago City Council enacted a new gang loitering ordinance on the lines suggested by the majority opinion.
This is not to conclude, however, that all problems in the administration of public order laws evaporated once state and local legislatures narrowed the scope of such laws. In fact, the new public order laws of the 1990s raised many of the same concerns associated with earlier vagrancy and disorderly conduct laws. These concerns sometimes centered on whether the criminal law was the most effective mechanism for dealing with specific public order problems. Many communities during this period successfully addressed some such problems with programs that involved noncriminal sanctions or that combined law enforcement with various forms of social service.
Perhaps the most consistent area of concern, however, involved the ways in which police exercise discretion in order maintenance. In many places, a new emphasis on public order in the 1990s did help renew public confidence in the ability of police to contribute to the well-being of the neighborhoods they serve. Elsewhere, however, police initiatives directed at crime and disorder provoked legitimate anxiety about police intrusiveness, particularly as directed at minorities and the homeless.
At the same time, it became increasingly evident during this decade that the judicial invalidation of reasonably specific public order laws was not the answer to police misuse of such laws. Because police decide when, where, and whether to enforce public order laws, they exercise considerable discretion in this area even when public order laws prohibit narrowly defined behaviors, and even when such laws are very precise. The proper exercise of this discretion, however, can be very beneficial to communities and need not lead to police abuse.
In the late 1990s, increased attention came to be paid to ways in which communities might exercise better political and administrative control over the performance of police order maintenance responsibilities. There was experimentation with civilian complaint review boards and early warning systems, both designed in part to alert police administrators to problem officers who might be misusing their authority. Attention was paid to guidelines that might inform police in the exercise of their discretion, as well as to the role elected officials might play in overseeing police departments. Mechanisms for the political and administrative constraint of police were still developing at the end of the decade. Commentators argued, however, that changes in political conditions since the 1960s related to the growing political power of minority communities rendered such mechanisms viable and, further, that such mechanisms constituted more reliable controls on police discretion than the search by judges for textural precision in public order laws (Kahan and Meares).
See also Crime: Definition; Criminalization and Decriminalization; Drugs and Crime: Legal Aspects; Juvenile and Youth Gangs; Police: Policing Complainantless Crimes; Riots: Behavioral Aspects; Riots: Legal Aspects; Victimless Crimes.
Alschuler, Albert W., and Schulhofer, Stephen J. "Antiquated Procedures or Bedrock Rights? A Response to Professors Meares and Kahan." University of Chicago Legal Forum (1998): 215–244.
American Law Institute. Model Penal Code and Commentaries: Official Draft and Revised Comments. 3 vols. Philadelphia: ALI, 1980.
Feeley, Malcolm M. Court Reform on Trial. New York: Basic Books, 1983.
Foote, Caleb. "Vagrancy-Type Law and Its Administration." University of Pennsylvania Law Review 104 (1956): 603–650.
Force, Robert. "Decriminalization of Breach of the Peace Statutes: A Nonpenal Approach to Order Maintenance." Tulane Law Review 46 (1972): 367–435.
Hascourt, Bernard E. "Reflecting on the Subject: A Critique of the Social Influence Conception of Deterrence, the Broken Window Theory, and Order-Maintenance Policy New York Style."Michigan Law Review 97 (1998): 291–389.
Jeffries, John Calvin, Jr. "Legality, Vagueness, and the Construction of Penal Statutes" Virginia Law Review 71 (1985): 189–245.
Kahan, Dan M., and Meares, Tracey L. "Foreword: The Coming Crisis of Criminal Procedure." Georgetown Law Journal 86 (1998): 1153–1184.
Kelling, George L., and Moore, Mark H. "From Political to Reform to Community: The Evolving Strategy of Police." In Community Policing: Rhetoric or Reality. Edited by Jack R. Greene and Stephen D. Mastrofski. New York: Praeger, 1988. Pages 3–25.
Kennedy, Randall. Race, Crime, and the Law. New York: Pantheon Books, 1997.
Lacey, Forrest W. "Vagrancy and Other Crimes of Personal Condition." Harvard Law Review 66 (1953): 1203–1226.
Livingston, Debra. "Police Discretion and the Quality of Life in Public Places: Courts, Communities, and the New Policing." Columbia Law Review 97 (1997): 551–672.
——. "Gang Loitering, the Court, and Some Realism about Police Patrol." Supreme Court Review (1999): 141–202.
Meares, Tracey L., and Kahan, Dan M. "The Wages of Antiquated Procedural Thinking: A Critique of Chicago v. Morales." University of Chicago Legal Forum (1998): 197–214.
——. "Black, White, and Gray: A Reply to Alschuler and Schulhofer." University of Chicago Legal Forum (1998): 245–259.
Moore, Mark Harrison. "Problem-solving and Community Policing." In Modern Policing. Edited by Michael Tonry and Norval Morris. Chicago: University of Chicago Press, 1992. Pages 99–158.
Note. "The Vagrancy Concept Reconsidered: Problems and Abuses of Status Criminality." New York University Law Review 37 (1962): 102–136.
Perkins, Rollin M. "The Vagrancy Concept." Hastings Law Journal 9 (1958): 237–261.
Ruefle, William, and Reynolds, Kenneth Mike. "Curfews and Delinquency in Major American Cities." Crime and Delinquency 41 (1995): 347–363.
Sherry, Arthur H. "Vagrants, Rogues, and Vagabonds: Old Concepts in Need of Revision." California Law Review 48 (1960): 557–573.
Wilson, James Q., and Kelling, George L. "Broken Windows." In Critical Issues in Policing. Edited by Roger G. Dunham and Geoffrey P. Alpert. Prospect Heights, Ill.: Waveland Press, 1993. A reprint of the original article that appeared in the March 1982 issue of Atlantic Monthly.
Argersinger v. Hamlin, 407 U.S. 25 (1972).
Barr v. City of Columbia, 378 U.S. 146 (1964).
Chicago v. Morales, 527 U.S. 41 (1999).
Garner v. Louisiana, 368 U.S. 157 (1961).
Gideon v. Wainwright, 372 U.S. 335 (1963).
Gooding v. Wilson, 405 U.S. 518 (1972).
Grayned v. City of Rockford, 408 U.S. 104 (1972).
Mayor of City of New York v. Miln, 36 U.S. (11 Pet.) 102 (1837).
Papachristou v. Jacksonville, 405 U.S. 156 (1972).
Powell v. Texas, 392 U.S. 514 (1968).
Robinson v. California, 370 U.S. 660 (1962).
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Vagrants and Beggars
VAGRANTS AND BEGGARS
VAGRANTS AND BEGGARS. With the increase in the ranks of paupers in the late fifteenth and early sixteenth centuries, contemporary legislation began to discriminate between the deserving and the undeserving poor. The definition of the "true" poor (children, the aged, the sick, and the infirm) reflected the new policy of early modern governments all over Europe of refusing to recognize unemployment per se as an excuse for beggary. The magistrates held that, apart from those who were rendered incapable of earning a living by age or physical condition, all who begged should be considered willful idlers and treated severely. It was therefore declared that the beggary of the able-bodied poor was criminal. The intention was to help those unable to take care of themselves, whereas able-bodied persons unwilling to work were not entitled to poor relief, but, on the contrary, were subject to a variety of disciplinary measures. The dangerous poor were, according to a stereotype that developed in the sixteenth and seventeenth centuries, typically rootless, masterless, and homeless. The beggar who took to a life of crime, and abused the conventions of a Christian society of "orders" and "callings," became defined as a member of a deviant subculture, who had to be punished. In its justification of these punishments, which became even more severe during the seventeenth and eighteenth centuries, governments stressed the connection between beggary and criminality.
The equation between begging and crime became a commonplace in poor law legislation from the sixteenth century onward. It was used to justify harsh but futile measures against those who supposedly showed an ingrained laziness and a stubborn preference for living from charity, and, inevitably, went astray, becoming used in the end to a disorderly and criminal style of life (vagrancy, theft, smuggling, and prostitution).
THE GROWING NUMBERS OF BEGGARS AND VAGRANTS
Vagrancy was a socially defined offense that reflects the dual problem of geographical and social mobility in early modern Europe. Offenders were arrested and punished not because of their actions, but because of their marginal position in society. The implication was that vagrants were not ordinary criminals but were regarded as a major threat to society, and therefore pursued by all authorities and stigmatized as deviants. The offense of which they were accused posed a serious challenge to the moral and physical well-being of the Christian commonwealth. Vagrants should not be confused with the outsiders known in medieval Germany as fahrende Leute, 'wayfarers'. Those included a variety of people, from wandering scholar to minstrels and knifegrinders. Many of them were engaged in itinerant trades or professions whose form of work involved wandering (entertainers, transient healers, hawkers, tinkers). They were also despised, ridiculed, stigmatized, and marginalized, but not prosecuted for their deviant way of life.
During the course of the fifteenth century a new social phenomenon grew up alongside these traditional "vagrants": the fraudulent beggar and the idle, sturdy vagabond. Their advent caused governments to react accordingly. In early modern Württemberg, for example, all officials were put on alert for idle vagrants from 1495, and by 1508 those arrested were increasingly charged with "suspicious wandering." The legal concept of vagabondage is based on the distinction between able-bodied and "impotent" poor, which had been propagated by the critiques of the traditional view of poverty since the later Middle Ages, but was only fully accepted by governments of all persuasions from the sixteenth century onward. The ideological underpinning was provided by the rhetorical flourishes of humanists and preachers and the attacks upon vagrants in popular literature.
The omnibus statutory definitions of vagrancy, and even those found in the learned or popular tradition, were not purely theoretical. Not every offender, of course, showed all the characteristics of the stereotype, nor were these traits absolutely necessary for prosecutions or arrests to take place. According to contemporary sources the number of vagrants had been increasing over the sixteenth century, but it is difficult to substantiate these estimates statistically. The clearest evidence of a real growth in vagrancy during the early modern period is the figures that refer to people who were arrested, convicted, or punished for vagrancy alone, and not for any other crime. In late-sixteenth-century England, vagrants numbering only in the hundreds were found in the special searches after the Rising in the North (1571–1572), while sixty years later reports to the Privy Council recorded the local arrest and punishment of many thousands of wandering rogues and sturdy beggars (nearly 25,000 in thirty-two English counties between 1631 and 1639). It is likely that the number of people that could be labeled as vagrants continued to increase well into the seventeenth century, not only in England but also in other European countries. But there was worse to come. In the eighteenth century vagrancy was exacerbated not only by deteriorating demographic and economic conditions but also by growing government efforts to eradicate the problem. Comparative statistics for the total number of vagabonds in various European countries are complicated by the variety of ways in which vagrants could be punished. Despite numerous uncertainties, it is possible, for example, to compare the number of people detained as vagrants (broadly defined) and interned in "houses of correction" or dépôts de mendicité in England and France, respectively, in the later eighteenth century. While in England three to four thousand vagrants and idlers were interned annually, the French police arrested in the same period (1770s and 1780s) between ten and thirteen thousand vagrants each year. Comparing the rates of internment for every 10,000 inhabitants in the two countries, shows that, as far the repression of vagrancy was concerned, the French government was obviously more successful and its police more efficient in enforcing the vagrancy laws that had been in force in both countries since the sixteenth century. These numerical results are thus quite significant in terms of the capabilities of the two most powerful eighteenth-century European states and their respective policing organizations, but there can be no doubt that other countries made similar efforts to suppress vagrancy.
THE STRUCTURE OF VAGRANCY
The sources also tell us something about the structure of vagrancy. Vagrants were more mobile and traveled longer distances than other migrants. According to an English study, the large majority of apprentices and journeymen moved less than forty miles, while among the vagrants whose place of origin can be determined, more than seventy percent had gone farther; a substantial number of them (22 percent) had even covered a distance of more than one hundred miles. It is often impossible to state the average age of those arrested as vagrants, because of the incompleteness of the data. The few statistics that we have for the sixteenth to eighteenth centuries, however, leave no doubt that vagrancy was mainly a young person's crime. In Tudor and Stuart England the proportion of vagrants below age twenty-one declined from 67 to 47 percent in the years 1623–1639 as compared to 1570–1622, but was still rather high. Most vagabonds were single and male. That is precisely the group that is underrepresented in listings of the resident respectable poor. The vagrants were distinguished from the latter also in being predominantly young.
Almost unanimously, contemporary observers and legislators assumed that vagabonds chose to be unemployed. The evidence of vagabonds' previous and present occupations suggests that unemployment was a growing problem and that opportunities were contracting, and that as a result the poor were taking up less secure positions such as casual labor, soldiery, and entertainment, which had at that time close links with vagabondage. According to a study on the profile of vagrancy in England in the sixteenth and seventeenth centuries, roughly one-third of all vagabonds who could report work histories were engaged in the production of food, leather goods, or cloth and metal wares, or in mining or building; at least one-quarter were servants, apprentices, journeymen, laborers, and harvest workers; almost one-fifth were petty tradesmen and tinkers; and one-tenth were soldiers and mariners. This profile of occupations is strikingly similar to that established for vagrants arrested in eighteenth-century Bavaria. The other major group that figures prominently in the German reports of arrest was a medley of tramping artisans and members of "dangerous trades," consisting largely of flayers and knackers' men and their families.
All these features and social traits provided ample grounds for abhorrence of the idle rogue and sturdy beggar and for his accidental confusion with the simple migrant or pauper.
In early modern legislation the sturdy beggar was characterized as the incarnation of idleness. Flogging, branding, hard labor in the galleys, and all other penalities introduced against begging and vagrancy that involved public disgrace, were justified because they were meant to constrain the poor from following their unlawful and unchristian inclinations and impel them toward their moral and social duty, that is, to work. Branding and ear boring were ritual punishments that left everlasting marks of infamy on the body of the offender. According to the Edwardian statute of 1547 vagrants were to branded with a V on their breasts. Ear-boring is first mentioned in a statute passed in 1572. In France beggars and vagrants brought to court were subjected to the ritual of corporal punishment including branding (M for mendiant, V for vagabond ) and public flogging. Both police and judges examined suspects' bodies for the marks of branding and whipping when they took their disposition. Sometimes the most obscure mark (e.g., the fact that a patch of skin on the shoulder was lighter and of different texture from the rest) was used as proof of a criminal record.
Further forms of corporal punishment for deviant paupers included hair polling, the pillory, and ear cropping. Each of these rituals implied various degrees of public disgrace. The pillory, for example, had been employed against fraudulent beggars since the late Middle Ages. Other forms of degrading punishments for vagrants were of local origin, as for example the "ducking-stool," which was in use in some early modern English towns. This was a special instrument of punishment for prostitutes or dis-honest tradesmen but also for other offenders, consisting of a chair in which an offender was tied and exposed to public derision or ducked in water.
Whipping, branding, and ear boring were for a long time and until the eighteenth century the easiest way of dealing with sturdy beggars and vagabonds. Whether these corporal punishments alleviated the problem of poverty and its concomitant, vagrancy, is doubtful. But it had at least one great advantage: it gave the local governments the feeling that they were at least doing something against the rising number of "masterless men" on the road.
Local authorities rather seldom used their legislative powers to lock up the wandering or deviant poor (confinement) or to restrict their freedom to move within the municipal area (segregation). More often than not, magistrates turned to the ancient remedy of expulsion. There was almost no town in early modern Europe that at one time or another did not prohibit begging and order the removal of all sturdy beggars and vagabonds. Gatekeepers and constables were admonished to redouble their efforts in order to keep the unwelcome poor outside the city. Some municipalities (e.g., Cologne and Bordeaux) were less successful in barring foreign beggars from entering the city because of the lack of police forces and gaps in their fortification systems. Other European cities managed better in keeping an eye on the floating populations.
In view of the various weaknesses connected with the expulsion or mass banishments of beggars, national governments tried more effective forms of removal for outcast rogues and sturdy beggars. In England the transportation of vagabonds to the colonies dates back to Elizabeth I's reign. The Vagrancy Act of 1597 stipulated that dangerous rogues should be banished overseas. A Privy Council order of 1603 mentioned various destinations: Newfoundland, the East and West Indies, France, Germany, Spain, and the Low Countries. Most of those exiled for vagrancy and other crimes were, however, sent to the American colonies.
THE GREAT CONFINEMENT
Compared to stigmatizing corporal punishment and other traditional measures of social control such as expulsion and transportation, a new reformative policy of punishment in the form of so-called protopenal institutions offered the authorities a kind of control over the offender without abusing his body. One should not forget, however, that despite this humanitarian impetus, in most "bridewells," houses of correction, or similar institutions founded in many European countries during the late sixteenth and early seventeenth centuries, chaining and beating of the inmates were common practice until the end of the ancien régime.
The most distinctive product of early modern thinking on social welfare was the creation of a new kind of hospital. The practice of confining beggars in jail-like institutions certainly gained favor in the eighteenth century, but as a means of providing work for the needy and punishing the disreputable and deviant, it had a long history, dating back to the second half of the sixteenth century. In 1553 Edward VI, influenced by Bishop Nicolas Ridley, conveyed an old, decayed palace, the Bridewell, to the city of London, for the purpose of safekeeping, punishing, and setting to work the idle poor and vagabonds. Other English towns (such as Norwich and Ipswich) followed in the 1560s. The poor-relief act of 1576 ordered the establishment of so-called houses of correction in all counties and corporate towns of the realm. In this prototype of an institution that was later to become known as the "workhouse," punishment by imprisonment was given a new importance. This means that labor was, for the first time, introduced as corrective discipline. The English statutes of 1576, 1597, and 1610 all listed punishment, work, and discipline as reasons for the establishment of such houses.
At about the same time when Bridewell became the English model for a new type of institution to combat vagabondage, the magistrates of the city of Amsterdam decided to establish a tuchthuis for men, to be followed by a similar institution for women known as a spinhuis. The name of the institution derived from the type of labor the inmates were compelled to perform. The men were forced to chop and rasp Brazilian dyewood, while the women and young children were required to spin, knit, or sew. The reformative program attached great importance to personal hygiene, industriousness, and piety.
The foundation of the Amsterdam tuchthuis was a landmark in the history of a vast program of social engineering, known since Michel Foucault's work in this field as "the Great Confinement." Whether or not one agrees with Foucault's theory of continuity of incarceration and the common disciplinary features of workhouses, asylums, prisons, and factories, there can be little doubt that all those institutions attempted to repress vagrancy and mendicity by segregating and putting to work those caught begging without permission. In the sixteenth century, labor still had strong religiousmoral connotations as a remedy against sinful idleness. By the seventeenth century, when the work-house movement had gained momentum all over Europe, the earlier quality of labor as the means to fight the supposed main cause of poverty (idleness) had been overlaid by a more pragmatic concept in which confinement and compulsory labor were seen as the appropriate instrument to punish and correct beggars and other deviants. Consequently, the workhouse became the distinctive feature of poor relief right to the nineteenth century, even if this English institution and its European adaptations and mutations failed to meet the high expectations of contemporaries.
See also Charity and Poor Relief ; Crime and Punishment ; Poverty .
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"Vagrants and Beggars." Europe, 1450 to 1789: Encyclopedia of the Early Modern World. . Encyclopedia.com. (February 22, 2018). http://www.encyclopedia.com/history/encyclopedias-almanacs-transcripts-and-maps/vagrants-and-beggars
"Vagrants and Beggars." Europe, 1450 to 1789: Encyclopedia of the Early Modern World. . Retrieved February 22, 2018 from Encyclopedia.com: http://www.encyclopedia.com/history/encyclopedias-almanacs-transcripts-and-maps/vagrants-and-beggars
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The condition of an individual who is idle, has no visible means of support, and travels from place to place without working.
At common law the term vagrant referred to a person who was idle, refused to work although capable of doing so, and lived on the charity of others. Until the 1970s state vagrancy statutes were used by police to charge persons who were suspected of criminal activity, but whose actions had not gone far enough to constitute a criminal attempt. Court decisions, however, have struck down vagrancy laws as unconstitutionally vague. In addition, the term vagrant has been replaced by homeless person as a way of describing a person who is without means or a permanent home.
Traditionally, communities tended to regard vagrants with suspicion and view them either as beggars or as persons likely to commit crimes. In England vagrants were whipped, branded, conscripted into military service, or exiled to penal colonies. In colonial America vagrancy statutes were common. A person who wandered into a town and did not find work was told to leave the community or face criminal prosecution.
After the u.s. civil war, the defeated Southern states enacted Black Codes, sets of laws that sought to maintain white control over the newly freed African American slaves. The concern that African Americans would leave their communities and deplete the labor supply led to the inclusion
of vagrancy laws in these codes. Unemployed African Americans who had no permanent residence could be arrested and fined. Typically, the person could not pay the fine and was therefore either sent for a term of labor with the county or hired out to a private employer.
The abuse of vagrancy laws by the police throughout the United States was common. Such laws were vague and undefined, allowing police to arrest persons merely on the suspicion they were about to do something illegal. In 1972 the U.S. Supreme Court addressed this problem in Papachristou v. Jacksonville, 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110. The Court ruled that a Florida vagrancy statute was unconstitutional because it was too vague to be understood. The Court emphasized that members of the public cannot avoid engaging in criminal conduct, if prior to engaging in it, they cannot determine that the conduct is forbidden by law. The Court also concluded that the vagrancy law's vagueness lent itself to arbitrary enforcement: police, prosecutors, and juries could enforce the law more stringently against one person than against another, even though the two individuals' conduct was similar.
After Papachristou the validity of vagrancy statutes was put in doubt. Prosecutions for vagrancy must now be tied to observable acts, such as public begging. Prosecutions are rare, however, because local governments do not want to spend their financial resources incarcerating persons for such offenses.
"Vagrancy." West's Encyclopedia of American Law. . Encyclopedia.com. (February 22, 2018). http://www.encyclopedia.com/law/encyclopedias-almanacs-transcripts-and-maps/vagrancy
"Vagrancy." West's Encyclopedia of American Law. . Retrieved February 22, 2018 from Encyclopedia.com: http://www.encyclopedia.com/law/encyclopedias-almanacs-transcripts-and-maps/vagrancy
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vagrancy, in law, term applied to the offense of persons who are without visible means of support or domicile while able to work. State laws and municipal ordinances punishing vagrancy often also cover loitering, associating with reputed criminals, prostitution, and drunkenness. The punishment is usually a fine or several months in jail. Instead of arresting vagrants, local officials often attempt to induce them to move on. Beginning in the 1960s vagrancy laws came under constitutional attack. The vague statutory language was often held to be too broad, in violation of the due process requirements of the Fourteenth Amendment to the U.S. Constitution: individuals were not adequately warned of what conduct was forbidden and police had too much discretion in deciding whether to make an arrest. It was ruled that enforcement of the laws often violated the protections of the First Amendment, especially when police used them against political demonstrators and unpopular groups. U.S. vagrancy laws generally punish the status of being a vagrant and not some overt act. This approach derives from English laws of the 16th cent. that generally failed to distinguish between the indigent and the criminal and that set harsh punishments, including whipping and transportation to the colonies. England gradually modified its poor laws and today punishes only overt acts dangerous to the community. Vagrants are often tolerated as scavengers, and in certain East Asian countries they are ascribed semireligious qualities, revered, but also feared, for their spiritual powers. Vagrants are basically a product of unemployment and their numbers swell during depressions.
See C. J. Ribton-Turner, The History of Vagrants and Vagrancy (1887, repr. 1972).
"vagrancy." The Columbia Encyclopedia, 6th ed.. . Encyclopedia.com. (February 22, 2018). http://www.encyclopedia.com/reference/encyclopedias-almanacs-transcripts-and-maps/vagrancy
"vagrancy." The Columbia Encyclopedia, 6th ed.. . Retrieved February 22, 2018 from Encyclopedia.com: http://www.encyclopedia.com/reference/encyclopedias-almanacs-transcripts-and-maps/vagrancy
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"vagrancy." Oxford Dictionary of Rhymes. . Encyclopedia.com. (February 22, 2018). http://www.encyclopedia.com/humanities/dictionaries-thesauruses-pictures-and-press-releases/vagrancy
"vagrancy." Oxford Dictionary of Rhymes. . Retrieved February 22, 2018 from Encyclopedia.com: http://www.encyclopedia.com/humanities/dictionaries-thesauruses-pictures-and-press-releases/vagrancy